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Immigration Judges' Decisions on Nonreceipt of Notice

New York

,

United States of America

Issue

Can an immigration case be reopened more than 180 days after an in absentia order of removal?

Conclusion

8 U.S.C. § 1229a(b)(5)(c) provides that an order for removal in absentia can only be rescinded if a motion to reopen is filed within 180 days of the date of the order of removal if the failure to appear was because of exceptional circumstances, or, upon a motion to reopen filed at any time if the alien did not receive notice of the removal proceedings.

Exceptional circumstances and nonreceipt of notice are independent bases for rescission. (Alrefae v. Chertoff)

Exceptional circumstances are defined as circumstances beyond the control of the alien such as a battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien. (Alrefae v. Chertoff)

With regard to claims of nonreceipt of notice, there is a presumption that an alien received notice of removal hearings so long as the record establishes that the notice was accurately addressed and mailed in accordance with normal office procedures. An alien who moves to reopen claiming that they did not receive notice must rebut this presumption. (Lopes v. Gonzales, Alrefae v. Chertoff)

Where a presumption of receipt has been applied, the BIA must consider all relevant evidence, including circumstantial evidence, offered to rebut that presumption. (Lopes v. Gonzales, Alrefae v. Chertoff)

Factors an immigration judge might weigh in determining whether the petitioner rebutted the presumption of receipt include facts that may tend to show a general willingness to comply with U.S. immigration laws as well as facts that may contradict the petitioner's claim on nonreceipt. (Alrefae v. Chertoff)

In the unreported case of Lewis v. Lynch, the United States Court of Appeals for the Second Circuit held that the petitioner's claim that he failed to appear due to illness provided no ground for equitable tolling of the 180-day time limit to file a motion to reopen and seek rescission of an in absentia removal order based on exceptional circumstances.

Law

8 U.S.C. § 1229a(b)(5)(c) provides that an order for removal in absentia can only be rescinded if a motion to reopen is filed within 180 days of the date of the order of removal if the failure to appear was because of exceptional circumstances, or, upon a motion to reopen filed at any time if the alien did not receive notice of the removal proceedings:

Such an order may be rescinded only-

(i) upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (e)(1)), or

(ii) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) or (2) of section 1229(a) of this title or the alien demonstrates that the alien was in Federal or State custody and the failure to appear was through no fault of the alien.

The filing of the motion to reopen described in clause (i) or (ii) shall stay the removal of the alien pending disposition of the motion by the immigration judge.

The same requirements are reiterated in 8 C.F.R. § 1003.23(b)(4)(ii):

(ii) Order entered in absentia or removal proceedings. An order of removal entered in absentia or in removal proceedings pursuant to section 240(b)(5) of the Act may be rescinded only upon a motion to reopen filed within 180 days after the date of the order of removal, if the alien demonstrates that the failure to appear was because of exceptional circumstances as defined in section 240(e)(1) of the Act. An order entered in absentia pursuant to section 240(b)(5) may be rescinded upon a motion to reopen filed at any time if the alien demonstrates that he or she did not receive notice in accordance with sections 239(a)(1) or (2) of the Act, or the alien demonstrates that he or she was in Federal or state custody and the failure to appear was through no fault of the alien. However, in accordance with section 240(b)(5)(B) of the Act, no written notice of a change in time or place of proceeding shall be required if the alien has failed to provide the address required under section 239(a)(1)(F) of the Act. The filing of a motion under this paragraph shall stay the removal of the alien pending disposition of the motion by the Immigration Judge. An alien may file only one motion pursuant to this paragraph.

8 U.S.C. § 1229(a)(1) sets out the requirements for a “Notice to Appear” to be valid. 8 U.S.C. § 1229(a)(1) states that the Notice to Appear shall be given in person to the alien or, if personal service is not practicable, through service by mail to the alien or to the alien's counsel of record, if any:

(a) Notice to appear

(1) In general

In removal proceedings under section 1229a of this title, written notice (in this section referred to as a "notice to appear") shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien's counsel of record, if any) specifying the following:

(A) The nature of the proceedings against the alien.

(B) The legal authority under which the proceedings are conducted.

(C) The acts or conduct alleged to be in violation of law.

(D) The charges against the alien and the statutory provisions alleged to have been violated.

(E) The alien may be represented by counsel and the alien will be provided (i) a period of time to secure counsel under subsection (b)(1) and (ii) a current list of counsel prepared under subsection (b)(2).

(F)

(i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted respecting proceedings under section 1229a of this title.

(ii) The requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien's address or telephone number.

(iii) The consequences under section 1229a(b)(5) of this title of failure to provide address and telephone information pursuant to this subparagraph.

(G)

(i) The time and place at which the proceedings will be held.

(ii) The consequences under section 1229a(b)(5) of this title of the failure, except under exceptional circumstances, to appear at such proceedings.

8 U.S.C. § 1229a(b)(5)(B) provides that no notice shall be required prior to an order to remove a noncitizen in absentia if the noncitizen has failed to provide the address required under section 8 U.S.C. § 1229(a)(1)(F):

(A) In general

Any alien who, after written notice required under paragraph (1) or (2) of section 1229(a) of this title has been provided to the alien or the alien's counsel of record, does not attend a proceeding under this section, shall be ordered removed in absentia if the Service establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable (as defined in subsection (e)(2)). The written notice by the Attorney General shall be considered sufficient for purposes of this subparagraph if provided at the most recent address provided under section 1229(a)(1)(F) of this title.

(B) No notice if failure to provide address information

No written notice shall be required under subparagraph (A) if the alien has failed to provide the address required under section 1229(a)(1)(F) of this title.

In Lopes v. Gonzales, 468 F.3d 81 (2nd Cir. 2006), the United States Court of Appeals for the Second Circuit held that even in the context of regular mail, as compared to certified mail, a presumption of receipt is proper so long as the record establishes that the notice was accurately addressed and mailed in accordance with normal office procedures. Thus, the Court found that the Board of Immigration Appeals ("BIA") did not err by applying a rebuttable presumption that the petitioner received his notice to appear (at 85):

Silva next maintains that the BIA erred by applying the Grijalva standards to his appeal because those standards apply only where the record contains proof of attempted delivery and notification by certified mail. While we agree with Silva's contention that Grijalva's exacting standards apply only within the context of certified mail, we disagree with Silva's reading of the BIA's decision in this case. Although the BIA cited Grijalva, it did not expressly apply the "strong presumption" set forth there. Instead, the BIA relied on the more general presumption that "public officers," such as Immigration Court and Postal Service personnel, "properly discharge their duties." The application of this presumption accords with our own holding, albeit outside the immigration context, that a presumption of receipt exists where a piece of mail is "properly addressed and mailed in accordance with regular office procedures." Akey v. Clinton County, 375 F.3d 231, 235 (2d Cir.2004) (holding that under such circumstances, the sender is "entitled to a presumption that the notices were received").

Further, this approach accords with the holdings of several other courts of appeal to have considered the issue within the immigration context. Although courts generally have held that the precise Grijalva standards apply only when notice is sent by certified mail, they nevertheless have continued to provide for some presumption of receipt when notice is sent by regular mail. Nibagwire v. Gonzales, 450 F.3d 153, 156 (4th Cir.2006); Ghounem v. Ashcroft, 378 F.3d 740, 744-45 (8th Cir.2004); Gurung v. Ashcroft, 371 F.3d 718, 722 (10th Cir.2004); Salta v. INS, 314 F.3d 1076, 1079 (9th Cir.2002).

We hold that even in the context of regular mail, a presumption of receipt is proper so long as the record establishes that the notice was accurately addressed and mailed in accordance with normal office procedures. In this case, it is undisputed that the notice to appear was properly addressed, and the record contains a certificate of service setting forth that the notice was sent by regular mail.1 Accordingly, the BIA properly applied a rebuttable presumption that Silva received the notice to appear.

The Court found that while the BIA properly applied a presumption of receipt, it exceeded its discretion by failing to consider all the evidence that the petitioner offered to rebut that presumption. Where a presumption of receipt has been applied, the BIA must consider all relevant evidence, including circumstantial evidence, offered to rebut that presumption. The Court found that the BIA failed to consider three facts that might have weighed in favor of the petitioner, including: the petitioner's filing of an application for Alien Labor Certification; the fact that the petitioner promptly notified the United States Immigration and Naturalization Service ("INS") of his change of address; and that the petitioner disclosed the order of removal when he filed an Application to Register Permanent Resident or Adjust Status. On the other hand, the BIA was free to weigh against the petitioner the fact that he received the order of removal in 2003 but did not move to reopen his case for more than two years (at 85-86):

Although the BIA properly applied a presumption of receipt, it failed to consider all the evidence that Silva offered to rebut that presumption. The BIA wrote that Silva offered "no proof ... beyond a bare claim of non-receipt." We disagree. Although an affidavit of non-receipt might be insufficient by itself to rebut the presumption,

Page 86

it does raise a factual issue that the BIA must resolve by taking account of all relevant evidence—not merely that evidence sufficient under Grijalva. Joshi, 389 F.3d at 736-37. Here, the BIA failed to consider three facts that might weigh in favor of Silva. First, by filing an application for Alien Labor Certification in 2001, he initiated a proceeding to obtain a benefit, which makes it less likely that he would simply ignore a later immigration proceeding of which he had notice. Nibagwire, 450 F.3d at 157; Ghounem, 378 F.3d at 745; Salta, 314 F.3d at 1079. The existence of that pending application also arguably makes it less likely that Silva would have a motive to avoid immigration proceedings. Second, by promptly providing the INS with a change of address after he posted bond, he has done something to illustrate—again, at least arguably—that he is not an absconder. Third, Silva disclosed the order of removal when he filed an Application to Register Permanent Resident or Adjust Status in April of 2005; this disclosure could—but need not—be construed as an indication that he would similarly have done what was required of him had he known of the hearing. The BIA's failure to consider this evidence constitutes an excess of discretion. Joshi, 389 F.3d at 736-37; see also Anderson v. McElroy, 953 F.2d 803, 806 (2d Cir.1992) ("[W]e cannot assume that the BIA considered factors that it failed to mention in its decision.") (internal quotation marks omitted).

We do not wish to imply that on this evidence the BIA must grant Silva's appeal. Rather, we hold only that (1) it is proper to apply a presumption of receipt to a notice sent by regular mail where the record establishes that the notice was properly addressed and mailed according to normal office procedures, and (2) on a motion to reopen, the BIA must consider all relevant evidence, including circumstantial evidence, offered to rebut that presumption.2 We further note that the BIA is free to weigh against Silva the fact that he received the order of removal in 2003, but did not move to reopen his case for more than two years.

For the reasons set forth above, the petition is GRANTED, the decision of the BIA is VACATED, and the case is REMANDED for further proceedings consistent with this opinion. The pending motion for a stay of removal is DENIED as MOOT.

In Alrefae v. Chertoff, 471 F.3d 353 (2nd Cir. 2006), the petitioner argued that his in absentia removal order should be rescinded because he never received notice of his removal hearing because his friend lost his mail. The United States Court of Appeals for the Second Circuit found that the immigration judge erred by failing to explain why he found that the evidence the petitioner submitted did not rebut the presumption of receipt that arises when a notice of a removal hearing was properly sent. The Court explained that to prevail on a motion to rescind an in absentia removal order, the movant must show either that the failure to appear was because of exceptional circumstances or that they did not receive notice in accordance with paragraph (1) or (2) of 8 USC § 1229(a). "Exceptional circumstances" are defined as circumstances beyond the alien's control, such as a battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien. With regard to claims of nonreceipt of notice, there is a presumption that aliens receive notices of removal hearings that were properly mailed. Aliens who move to reopen claiming that they did not receive notice must rebut this presumption (at 358-359):

Although Alrefae claimed that he had not received notice of his removal hearing because his friend lost his mail, the IJ found that Alrefae had failed to rebut the presumption of delivery that applies to notices of removal hearings. The IJ also concluded that because of this presumption, Alrefae had failed to establish that exceptional circumstances prevented him from appearing for his removal hearing. Although, as we will explain, there is a presumption of receipt when notice of a removal hearing was properly sent, the IJ erred by failing to explain why he found that the evidence Alrefae submitted did not rebut this presumption. Moreover, the IJ erred by not analyzing Alrefae's claim of exceptional circumstances independently of his claim of nonreceipt.

With exceptions not relevant here, to prevail on a motion to rescind an in absentia removal order, the movant must show either "that the failure to appear was because of exceptional circumstances" or that he or she "did not receive notice in accordance with paragraph (1) or (2) of section 1229(a)."7 8 U.S.C. § 1229a(b)(5)(C). Exceptional circumstances are defined as "circumstances (such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien." Id. § 1229a(e)(1). The BIA's standard for exceptional circumstances appears fairly stringent, both in terms of the required severity of the circumstances and the proof required to establish a claim. See, e.g., In re B-A-S-, 22 I. & N. Dec. 57, 58-59 (B.I.A.1998) ("Where an alien argues that his failure to appear resulted from a `serious illness,' we normally would expect specific, detailed medical evidence to corroborate the alien's claim."); In re J-P-, 22 I. & N. Dec. 33, 34-35 (B.I.A.1998) (rejecting a claim of exceptional circumstances because a common headache would not constitute a "serious illness" and, even if a serious headache would qualify, the alien's "perfunctory statement" regarding his headache included "no detail regarding the cause, severity, or treatment of the alleged illness").

With regard to claims of nonreceipt under 8 U.S.C. § 1229a(b)(5)(C)(ii), there is a presumption that aliens receive notices of removal hearings that were properly mailed, and aliens who move to reopen claiming that they did not receive notice

Page 359

must rebut this presumption. When an alien fails to appear for removal proceedings, an in absentia removal order shall be entered if the government "establishes by clear, unequivocal, and convincing evidence that . . . written notice was . . . provided and that the alien is removable." 8 U.S.C. § 1229a(b)(5)(A) (emphasis added). When an alien seeks to rescind the removal order, however, claiming that he "did not receive notice" of the hearing, "[a]s the use of the word `receive' [in 8 U.S.C. § 1229a(b)(5)(C)(ii)] establishes, when considering the motion to reopen, the central issue no longer is whether the notice was properly mailed (as it is for the purpose of initially entering the in absentia order), but rather whether the alien actually received the notice."8 Lopes v. Gonzales, 468 F.3d 81, 84 (2d Cir.2006) (per curiam).

The BIA has stated that "where service of a notice of a deportation proceeding is sent by certified mail through the United States Postal Service and there is proof of attempted delivery and notification of certified mail, a strong presumption of effective service arises." Matter of Grijalva, 1995 WL 314388, 21 I. & N. Dec. 27, 37 (B.I.A.1995). This presumption can be overcome "by the affirmative defense of nondelivery or improper delivery by the Postal Service," but only if the alien presents "substantial and probative evidence such as documentary evidence from the Postal Service, third party affidavits, or other similar evidence demonstrating that there was improper delivery." Id. Although we have recently held that this exacting standard is inapplicable where, as in Alrefae's case, notice of delivery was sent by regular rather than certified mail,9 the BIA may apply a less stringent, rebuttable presumption to notices of removal hearings if "the record establishes that the notice was accurately addressed and mailed in accordance with normal office procedures." Lopes, 468 F.3d at 85. Although the BIA in Grijalva spoke in terms of a presumption of delivery, we have held that it is presumed not only that delivery to the alien's mailing address was effective, but also that the alien personally received the notice. See id. When an alien seeks to rescind an in absentia removal order claiming nonreceipt, the IJ must "consider all relevant evidence, including circumstantial evidence, offered to rebut th[e] presumption." Id. at 86.

The Court identified various facts that, on remand, the immigration judge might weigh in determining whether the petitioner rebutted the presumption of receipt, including facts that may tend to show a general willingness to comply with U.S. immigration laws as well as facts that may contradict the petitioner's claim of nonreceipt (at 360):

Although the IJ did not cite Grijalva, he invoked a presumption of delivery in rejecting Alrefae's claim of nonreceipt, explaining that "[s]aid notice of hearing was not returned to the court file[,] giving rise of [sic] a presumption of delivery." We need not decide whether the IJ intended to invoke the Grijalva standard, which we have rejected for notices sent by regular mail, or instead a less stringent presumption, because in either case the IJ erred in rejecting Alrefae's claim of nonreceipt by failing to explain why Alrefae had not rebutted the presumption of receipt. Alrefae submitted a notarized letter attesting that he had not received notice because his friend Mansour lost his mail, and he offered a police report as support for his claim that he began receiving his mail at Mansour's home after his own home was burglarized. Although the IJ was correct that there was no evidence of misdelivery — indeed, Alrefae claimed that his mail was lost after it was delivered to his mailing address — Alrefae attempted to show that he had not personally received the notice. The IJ was by no means required to find Alrefae's assertions sufficient to rebut the presumption, but he should have addressed them in his decision. See Lopes, 468 F.3d at 85-86 ("Although an affidavit of non-receipt might be insufficient by itself to rebut the presumption, it does raise a factual issue that the BIA must resolve by taking account of all relevant evidence . . . .").

We note several additional facts in the record that, on remand, the IJ might weigh in determining whether Alrefae rebutted the presumption of receipt. First, Alrefae appeared voluntarily to register for the NSEERS program, which may indicate a general willingness to comply with U.S. immigration laws and may suggest that he would not have knowingly failed to appear for his removal hearing. Cf. id. at 86 (noting that promptly notifying the INS of a change of address may indicate "at least arguably" that the alien "is not an absconder"). Second, Alrefae filed his motion to rescind and reopen within a few months of his scheduled removal hearing, and less than a month after receiving his divorce judgment, which also may provide some indication that he would have attended his removal proceeding had he received notice of it. Finally, the IJ might consider, on the other side of the scale, whether Alrefae's assertion that he began receiving his mail at his friend's address only after his own home was burglarized is contradicted by the fact that Alrefae gave his friend's address as his own mailing address when he appeared for NSEERS registration more than a month before the burglary. See supra note 5.

The Court also explained that the immigration judge erred by failing to consider the petitioner's exceptional circumstances and nonreceipt claims separately. Exceptional circumstances and nonreceipt are independent bases for rescission (at 360-361):

The IJ also concluded, without further explanation, that Alrefae had not made out a claim of exceptional circumstances because he failed to rebut the presumption of delivery. Because exceptional circumstances and nonreceipt are independent bases for rescission, it was error for the IJ not to assess Alrefae's exceptional circumstances and nonreceipt claims separately. We do not decide here whether a third party's misplacement of an alien's notice of hearing constitutes exceptional circumstances under BIA precedent, or, if it does, whether the evidence Alrefae submitted was sufficient to establish his claim. On remand, the IJ should assess Alrefae's claim of exceptional circumstances independently of his claim of nonreceipt and explain whether Alrefae is entitled to rescission on this ground on the basis of his claim that he did not receive notice because his friend lost his mail. In doing so, the IJ may consider the totality of the circumstances presented by Alrefae's case. See Kaweesa v. Gonzales, 450 F.3d 62, 68-69 (1st Cir.2006); Romero-Morales v. INS, 25 F.3d 125, 129-31 (2d Cir.1994).

Page 361

After considering all the relevant facts in the record, the IJ may decide that it is necessary to hold an evidentiary hearing to evaluate fully either or both of Alrefae's claims. If, however, the IJ determines that he can reach a decision on Alrefae's claims on the basis of the current record, he is not required to hold such a hearing.

In Maghradze v. Gonzales, 462 F.3d 150 (2nd Cir. 2006), the United States Court of Appeals for the Second Circuit affirmed the dismissal of the petitioner's motion to rescind an order of removal entered in absentia. The petitioner argued that he was eligible for rescission of his in absentia order of removal because he did not actually receive notice of his pending hearing. The BIA determined that an alien is deemed to be in constructive receipt of properly provided notice, and therefore ineligible for rescission of an in absentia order of removal, if they thwarted delivery. The petitioner thwarted delivery by relocating without providing a change of address to the INS as required by statute. The Court held that the BIA permissibly interpreted the 8 USCS § 1229a(b)(5)(C)(ii) requirement that an alien receive notice as constructively satisfied if notice is properly provided and the alien changes their address without informing the INS (at 153-154):

In affirming the IJ's dismissal of the motion to rescind, the BIA reasoned as follows. Pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii), an order of removal entered in absentia can be rescinded upon a motion to reopen that is filed at any time if the alien demonstrates that he did not receive notice of the removal proceedings in accordance with 8 U.S.C. § 1229(a). See BIA Decision at 1. According to 8 U.S.C. § 1229a(b)(5)(A), written notice of the hearing is a sufficient predicate for entry of an in absentia order of removal if that notice was "provided" at the most recent address provided by the alien pursuant to 8 U.S.C. § 1229(a)(1)(F). See BIA Decision at 1 (citing 8 U.S.C. § 1229a (b)(5)(A) and Matter of M-D-, 23 I. & N. Dec. 540, 543 (BIA 2002)). The alien also has the obligation to inform the Attorney General in writing as to any change in the alien's address or telephone number. See id. (referencing 8 U.S.C. § 1229(a)(1)(F)). In light of this statutory scheme, the BIA concluded that notice sufficed here because: [i] Maghradze was personally served with the NTA, which advised him as to the change of address requirements and as to the consequences of failing to appear for the scheduled hearing; [ii] the hearing notices were mailed to Maghradze's last address of record as reflected on the NTA — "50 Wyoming Street, Buffalo, N.Y. 14215"; and [iii] Maghradze's asserted excuse for failure to comply with § 1229(a)(1)(F) — that he did not understand his obligation to update his address — was not viable. See id. at 1-2.

Maghradze argues that he is eligible for rescission of his in absentia order of removal because he did not actually receive notice of his pending hearing. As Maghradze contends, the BIA's decision can be read to say that, under 8 U.S.C. § 1229a(b)(5)(C)(ii), the in absentia order may not be rescinded if notice was provided in conformity with the requirements of 8 U.S.C. § 1229(a), regardless of whether the properly-provided notice was actually received by the alien. Such an interpretation would conflict with cases in several circuits, which distinguish between [i] the requirement that a motion to rescind shall not be granted unless the alien demonstrates that he did not "receive" notice in accordance with 8 U.S.C. § 1229(a), see § 1229a (b)(5)(C)(ii), and [ii] the requirement that an in absentia order shall be entered so long as notice was "provided" properly, see § 1229a(b)(5)(A). See, e.g., Joshi v. Ashcroft, 389 F.3d 732, 736 (7th Cir.2004) (vacating BIA's denial of motion to reopen where BIA ignored objective evidence that postal service failed to deliver notice of the removal hearing); Gurung v. Ashcroft, 371 F.3d 718, 722 (10th Cir. 2004). These cases suggest that an alien may overcome the presumption that he actually received notice that was provided in conformity with 8 U.S.C. § 1229(a), thereby establishing eligibility for rescission of his in absentia order of removal under § 1229a(b)(5)(C)(ii).

We do not have to confront this potential conflict because the BIA gave an alternative interpretation of the statutory scheme: even assuming that an alien could rebut the presumption that properly-provided

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notice was actually received, the alien is deemed to be in constructive receipt of properly-provided notice — and hence ineligible for rescission of his in absentia order of removal — if he thwarted delivery. See BIA Decision at 2 n. 1 (citing Sabir v. Gonzales, 421 F.3d 456, 459 (7th Cir. 2005)). According to the BIA, "[i]n this case, [Maghradze] thwarted delivery by relocating and failing to provide a change of address. Thus, reopening is not warranted. . . ." Id.

Because the meaning of "receive notice in accordance with 8 U.S.C. § 1229(a)," § 1229a(b)(5)(C)(ii), is ambiguous, the BIA's interpretation is entitled to Chevron deference. We conclude that the BIA's (alternative) interpretation — that aliens who fail to provide a written update of a change of address are deemed to have constructively received notice provided in accordance with the requirements of 8 U.S.C. § 1229(a) — is permissible. Especially in light of the Supreme Court's admonition that motions to reopen are disfavored, see INS v. Abudu, 485 U.S. 94, 107, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) ("There is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases."), the distinction drawn in the statutory language between the provision of notice by the agency and its receipt by the alien is quite plausibly construed as applying only when the alien has acted in conformity with his obligations, and

Alexsei publishing date:
2022-03-08 23:33:00.449207
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